C.K. v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 12 December 2017 |
| Neutral Citation | [2017] IEHC 742 |
| Docket Number | [2012 No. 1023 J.R.] |
| Court | High Court |
| Date | 12 December 2017 |
[2017] IEHC 742
THE HIGH COURT
JUDICIAL REVIEW
McDermott J.
[2012 No. 1023 J.R.]
AND
Asylum, Immigration & Nationality - Refusal to give subsidiary protection - Reliance on previous decision maker's findings - Lack of independent assessment - Fair procedures - Adverse credibility findings
Facts: The applicant sought an order of certiorari for quashing the decision of the first respondent ('Minister') who had refused the applicant's application for subsidiary protection. The applicant also sought a declaration that the determination of the said application by the Minister was in breach of the applicant's right to be heard under art. 41 of the Charter of Fundamental Rights and Freedoms and Council Directive 2004/83/EC.
Mr. Justice McDermott granted an order of certiorari to the applicant and thus, quashed the decision of the Minister on the ground that the Minister had failed to assess the applicant's application independently and adopted the adverse credibility findings made by the Refugee Appeals Tribunal in its decision. The Court noted that the Minister had breached the principle of fair procedures as he was obliged to make fresh findings backed by independent reasons. The Court also observed that a fresh interview of the applicant before the Minister was not required at all as there were no special circumstances in the present case. The Court, in conformity with the judgment of the Court of Justice of the European Union (CJEU) in M. v. Minister for Justice and Equality (Case C-560/14), held that it was not essential to afford the 'right to be heard' to the applicant in asylum cases where the national legislation provided for a bifurcated process.
The applicant was granted leave to apply for judicial review for an order of certiorari of a decision made by the first named respondent on 26th October 2012 refusing his application for subsidiary protection, on the 17th December 2012. The applicant was also granted leave to apply for a declaration that the failure to provide him with an oral hearing or personal interview as part of a procedure by which the Minister determined the application for subsidiary protection was incompatible with the applicant's fundamental rights under European Union law and the right to be heard under Article 41 of the Charter of Fundamental Rights and Freedoms and Council Directive 2004/83/EC and that insofar as the European Communities (Eligibility for Protection) Regulations 2006 failed to provide for such an oral hearing or personal interview it was incompatible with the Directive.
The applicant is a national of Cameroon. He was born on 3rd June, 1982. He left Cameroon on the 28th June, 2011 and travelling on a European passport and accompanied by a person called Collette travelled via France to Dublin where he claimed asylum the following day. He had previously travelled to Moscow, Russia in May 2009 using a Cameroonian passport issued in Yaoundé.
On his arrival in Dublin he claimed asylum. The application was based on the fact that his father K.A. was Chief of his local area. The applicant's father nominated him as his successor. His father died on 11th April, 2011. The applicant claimed that he did not wish to succeed his father due to the responsibility which that entailed of looking after his father's wives, children and following and upholding pagan traditions of acting as a spiritual link between the living and the dead in his community. He feared that his brothers would not be happy if he became Chief. He left the village after his father's funeral and went to Douala and stayed in his friend's residence. His friend contacted the woman Collette who arranged his departure from Cameroon. He states that he does not wish to return to Cameroon as he feared that because he refused to accept the Chieftaincy the people in his village will kill him. He could only be legitimately replaced as Chief if he died.
He furnished the details of his immediate family relationships and they included a partner E.I.B., his daughter N.K. who was born on 10th January, 2008, his brothers E.M.K. born 25th December, 1985, N.N.M. born 25th November, 1979 and two sisters K.D.D.V. and N.D.L. born about 1980.
He completed a s. 11 interview on 19th July, 2011 in which he gave an account of his education in Cameroon. He obtained his Baccalaureate in June 2003 and then studied at the University of Buea until July 2004. He then commenced his studies as a nurse and obtained various nursing qualifications between 2007 and 2011 in Cameroon.
The applicant set out in more detail the reasons why he left Cameroon and sought asylum. He stated that as a Christian he could not accept the duties cast upon him as the successor to his father which involved polygamous marriage and spiritual beliefs that the Chief was an intermediary between the spiritual world and the physical world with the community's ancestral dead. He believed that if he returned to Cameroon his life would be in great danger. He believed that the villagers would seek to kill him as he has acted contrary to their traditional and spiritual rituals including skull worship. Other relations who covet the position of Chief would seek to kill him because they wished to see their children succeed as Chief. The government would view the matter as a local tribal matter to do with traditional values. In addition his absence left the local village without a Chief to assist in the locality's administration and in particular during elections and campaigns in favour of the political party in power and would not therefore be protected by the civil authorities.
In the s.11 interview the applicant also acknowledged that he had been in contact with his best friend and his partner who had no problems in Cameroon at that time because she was not living near his family and they did not know where she lived. His family lived in a village in the Western Province. His partner lived with her family in a different area of Cameroon.
The applicant stated that he travelled on a false Portuguese passport which he returned to Collette. He claimed that he was not obliged to show his passport which did not contain a photograph when transiting through France at the airport. He claimed to have passed through immigration control at Dublin airport without any problems. He had no airline tickets, border cards, travel itinerary, baggage tags or any other documentation to indicate the route by which he came to Ireland because it had all been taken by the woman who accompanied him.
After his father's death when he was offered the chieftaincy the applicant did not initially decline it. He informed the elders of the village that he was refusing it a number of days later. He then left the village on 25th May, 2011. He had no difficulties when living with his friend having left the village for a period of one month. Though accepting that Cameroon had a population of approximately 20 million people, the applicant did not accept that he could not be found by people from his village trying to locate him if he moved away. He believed that their spiritual powers could locate him. He believed that if he went to the police for protection they would inform his local village because they believe in the traditions as well.
By letter dated 7th September, 2011 the applicant was informed that the Refugee Applications Commissioner was recommending that he should not be declared a refugee. The s. 13 report from which the recommendation was based was exhibited.
The report concludes that it was difficult to substantiate in any real or meaningful way that the events the applicant described had actually occurred in Cameroon given the inherently subjective nature of his claim. Country of origin information indicated that in the area which he described including his district and town of origin chieftaincy was seen as a position which carried immense prestige. The State was directly involved in the making of a Chief through its local district officers and no-one could be compelled to be made one. When a candidate declined an offer to be made a Chief an alternative candidate would be selected. There was no rule that stated that until a selected candidate died a Chief cannot be appointed. It was possible even to remove a serving Chief with the approval of the State.
The report questioned a number of aspects of the applicant's claim. It queried whether the applicant would not be allowed to live as a Born Again Christian if selected to succeed in his father as Chief in the manner outlined. It stated that the applicant had not provided the office with any evidence of the death of his father in Cameroon. The report stated that the explanation for failing to apply for asylum in France was not a reasonable one namely, that his friend had an arrangement with 'Collette' to bring him to Ireland. The report also noted that he claimed to travel from Cameroon to Ireland using a Portuguese passport but was unable to inform the office of the name or date of birth which were on the document. He confirmed the photograph on the document was not his. The report considered it unlikely that he could have travelled from Cameroon via France to Ireland passing through Immigration in each country using somebody else's travel document. No evidence was produced of his journey to Ireland. It was considered that 'this applicant may not have provided a true and accurate account of how he travelled to and arrived in this State'.
The report also notes the applicant's failure to provide the office with any identity documents. He indicated that he had a Cameroon passport but when asked to request...
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